The Law Magazine, Or, Quarterly Review of Jurisprudence, Volume 12

Trinity; on his patron's elevation to the woolsack he was received into his house as his chaplain; a few years afterwards he presented him to the valuable living of St. Martin's in the Fields, in despite of the claims of a rival candidate for preferment (Dr. Clagget, afterwards Bishop of Exeter), who had actually kissed hands at the Court of Hanover on his nomination to it; and put him into the course of further advancement by procuring for him an appointment as one of the royal chaplains. Other instances are recorded of the Chancellor's disinterested and judicious distribution of church patronage. Notwithstanding the faults of temper which he exhibited on the bench, in the intercourse of private life he was accessible and affable, a warm and constant friend, a pleasing and instructive companion; not possessed of that temperament of universal courtesy which attracts the goodwill of many, but acquiring and retaining the warm and enduring attachment of a few. The well-known lines we have j ust quoted are not the only portion of honest Griffith's character of the fallen Wolsey which might be applied to him: —

"Lofty and sour, to them that loved him not,

But to those men that sought him, sweet as summer.

****** His overthrow heaped happiness upon him, For then, and not till then, he felt himself, A nd found the blessedness of being little. And, to add greater honours to his age Than man coidd give him, he died fearing God."

Lord Macclesfield had by his wife Janet, the daughter and coheiv of a gentleman of the name of Carrier, of Wirkworth in Derbyshire, who survived him but a few months, one daughter, Elizabeth, whom we have already mentioned as the wife of Sir William Heathcote; and one son, George, who succeeded to the title, deriving from his father an estate of little more than 3000/. a year, incumbered too with a heavy debt. He distinguished himself by a devotion to the pursuit of abstract science, of which his rank has afforded few instances before or since; acquired the reputation of one of the first mathematicians and astronomers of Europe, and was chosen, by a unanimous vote, President of the Royal
Society. He had the principal share in framing the bill for the reformation of the Julian calendar, and spoke upon it, as Lord Chesterfield informs us, with infinite knowledge, and all the clearness that so intricate a matter would admit of; although Chesterfield himself, who introduced the bill into the House of Lords, conceived himself to have carried away, from his more graceful elocution and more popular mode of treating the subject, all the applauses of his noble auditory, and to have imposed himself upon them as fully master of all its details, while, says he, " I could just as soon have talked Celtic or Sclavonian to them as astronomy, and they would have understood me just as well."

The only literary production ascribed to the Lord Chancellor Macclesfield is a tract, which is printed in the second volume of Gutch's "Collectanea Curiosa," entitled " A Memorial relating to the Universities," being a series of propositions the main object of which was to cure the jacobite tendencies displayed by those bodies on the accession of George I., by alterations in their course of study and discipline, and in the succession to college offices, fellowships, and livings. He proposes, for instance, that the heads of houses should be chosen, not by the societies over which they were to preside, but by the great officers of state and some of the bishops; that the fellows should hold only for twenty years at all events; that they should have more extensive opportunities of intercourse with the world, by a more liberal dispensation with their residence in college; he suggests the foundation of a professorship of the law of nature and nations, and the institution of courses of lectures in chymistry, anatomy, experimental philosophy, and other branches of more general knowledge than fell at that period within the prescribed course of academical instruction. By such methods he proposed to render the universities "more useful to the nation, by the increase of learning, and augmenting the number of those who might have the benefit of a learned education, as well as by bringing those seats of literature to a better sense of their duty to their king and country."

We shall conclude this imperfect memoir by expressing our belief, in the words of a more illustrious judicial delinquent, that Lord Macclesfield's criminality and degradation
proceeded not "from the troubled fountain of a corrupt heart, in a depraved habit of taking rewards to prevent justice, however he might be frail, and partake of the abuses of the times." His fate not only presented a seasonable and salutary warning, but was immediately beneficial to his country, in stopping up, by the application of legislative remedies, the sources in which the same corruptions might otherwise have been again engendered. W.

Aht. Hi—.on The Specific Performance, In Equity, Of Contracts Relating To Personalty.

It is commonly said1 to be a general rule that a court of equity will not decree a specific performance of agreements respecting personal chattels; and that the instances in which the jurisdiction of equity has been exercised in relation to the performance of such agreements are only to be regarded as exceptions to this rule. It has been said, indeed, in argument, that " the only decided case of exception to this rule is that of a partnership; and the reason is, that suppose an agreement for a partnership, and that one of the parties afterwards refuses to perform it, the other could have but a very inadequate and doubtful remedy at law." The first branch of this statement is certainly erroneous, and the reason assigned for the interference of equity in the case of partnership agreements, though sound in itself, has a much wider application than is here given to it. In fact, courts of equity have in many cases decreed a specific performance of agreements respecting the sale, the possession, and the mode of enjoyment of personal chattels. In some of these the question of the jurisdiction was expressly brought into controversy and determined; while in others the jurisdiction appears to have been assumed without debate or observation.

It is acknowledged that this subject is attended with considerable difficulty; but it appears to us that the difficulty principally arises from this manner of viewing contracts re

lating to personalty; namely, as excluded from the legitimate province of the equity jurisdiction in relation to specific performance, and as only entitled to be regarded in equity by reason of some extrinsic circumstances. Hence, each case as it arises is considered with reference mainly to its accordance in circumstances with such as have been previously admitted as exceptions to the common rule; and as these all present some peculiarities in regard to the kind of property, the terms of the contract, or the acts of the parties, the mind soon becomes wearied and confused in the attempt to ascertain with precision to what extent the exceptions have encroached upon the rule. We are so habituated to the marked distinction prevailing in our law between the rules relating to real and to personal property, that we are apt to be influenced in our reasonings by the notion that this distinction is based on an essential difference between these kinds of property, forgetting that it originated in feudal institutions and is peculiar to those systems of jurisprudence which are of feudal extraction.1 We have now, however, by a long course of extensive though gradual innovation, widely transgressed the limits prescribed to the enjoyment and disposition of personalty "in those days when it had in no point of view acquired or was considered susceptible of those artificial modifications or other durable qualities in the intendment of law which it now possesses." 2 This allusion to the history of our law of property may serve to point out the cause of, what have been not inaptly termed, " the caprices of the English law in regard to specific performance."3 Thus with respect to the things which we class under the term "chattels," no distinction having been observed between those which, in their nature, are not fit subjects of barter, and those which are so, or for which money may with perfect readiness and adequacy be

'In the Roman law, from which the best parts of our equity system have been directly deduced, and which has regained its general influence over the tribunals of Europe in proportion as feudal doctrines have declined in authority, the distinction, as understood by us, between real and personal property, was unknown. See Mr. Butler's Dissertation on the Feudal Law; Co. Litt. 191, a. note 77; Gibbon, chap. 44 (on the Roman Law), Decline and Fall; and Mr. Austin's " Outline," appended to his " Province of Jurisprudence," which Outline is in truth a most admirable analysis of the whole science of jurisprudence,

* Butler, ub. sup. 3 Austin, ub. sup.

substituted, the rule of excluding personal chattels generally from the remedy by specific performance came to be adopted, for a reason applicable merely to the latter description of personalty. In short, a part was made to stand for the whole; and, from the nature and qualities of that part, a conclusion was drawn which was made to serve as a ground for the exclusion of the whole from the jurisdiction of equity.

We propose altogether to reject this rule, as unfounded in principle and calculated to produce confusion and anomalies in the practical application of the remedy by specific performance. We will resort to a higher and more comprehensive rule. Every case is or ought to be a corollary from some general principle; and if we consider with any attention the cases in which a specific performance of contracts relating to personalty has been enforced, we cannot fail to observe that the decision may be referred to the same principle which governs the decision of causes on contracts relating to real property. In this view of the matter, every case, whatever be the nature of the subject of the contract, or the differences of circumstance, affords a practical illustration of the general principle which regulates the exercise of the equitable jurisdiction in regard to the specific performance of contracts. To this we must now briefly refer.

At a period when the subject of rights arising from contracts was little understood, the courts of common law appear to have been struck with alarm at the assumption by the Court of Chancery of an independent jurisdiction to compel the specific performance of agreements; and thus directly to afford to the party aggrieved by the breach of contract a remedy conformable to his primary right to have the thing contracted for. It was not considered, that if the municipal law do not enforce the moral obligation to do that which we have agreed to do, injustice must be the result in every case in which the injury which the complainant has sustained or may afterwards sustain by the nonperformance of the contract, does not admit of being precisely estimated in money. Without entering into sucli refinements, the courts of law deemed it a sufficient ground of complaint, that " such relief in equity would wholly subvert the actions of case and covenant, and compel a lease though the party contracting was entitled to make his elec